Professor of Law, University of Miami School of Law and Legislative & Tech Policy Director, Cyber Civil Rights Initiative

How to Defeat 'Revenge Porn': First, Recognize It's About Privacy, Not Revenge

That so many states are taking this issue seriously is tremendous progress. It is crucial, however, to ensure that the laws being passed truly protect victims and that they are clear, principled, and constitutionally sound. Unfortunately, many of these state laws do not fulfill these criteria.

06/22/2015 08:22 am ETUpdated
Jun 22, 2016

Americans value privacy. It is why we have laws to protect us against unauthorized disclosures of many kinds of personal information -- financial data, medical records, driver's licenses, home addresses -- and why trespass and voyeurism are considered not only violations of social norms but criminal offenses.

The fact that voyeurism is criminalized in every state and by the federal government reflects the particular value that Americans place on the basic right to choose who is allowed to see them naked and under what circumstances. Yet over the last decade, voyeurism has become a flourishing entertainment industry, ruining careers, reputations, personal relationships, and lives.

It's colloquially referred to as "revenge porn," but that term is misleading. While a number of cases do involve bitter exes whose express purpose is to harm or harass their former partners, many perpetrators don't know their victims at all. A more accurate term is nonconsensual pornography, defined as the distribution of private, sexually explicit material without consent.

As many as 3,000 websites feature nonconsensual pornography, and the material is also distributed through emails, text messages, social media applications, and hard copies. Websites and other forums openly solicit private intimate images and expose them to millions of viewers, allowing the original posters to hide in the shadows. This practice causes immediate, devastating, and in many cases irreversible harm. The private, explicit images often dominate Internet searches for victims' names, easily accessible to everyone a victim knows: parents, children, partners, employers, and peers. Victims are threatened with sexual assault, pressured to remain in abusive relationships, extorted, stalked, harassed, fired, expelled from school, and forced to move from their homes. They become fearful of going out in public and suffer PTSD and depression. Some have committed suicide.

The good news is that in the last few years, there has been a remarkable evolution in the public understanding about this destructive invasion of privacy. This is due in large part to the willingness of victims to go public with their stories and the rise of advocacy groups, including Without My Consent and the Cyber Civil Rights Initiative (CCRI). As the Legislative and Tech Policy Director of CCRI, I have had the privilege of working with a number of tech industry leaders and legislators to address the issue, and to witness firsthand the extraordinary progress made in a short amount of time. On June 21, 2015, comedian John Oliver addressed the issue on his popular show Last Week Tonight, summarizing the efforts that have been made so far to fight nonconsensual pornography and highlighting the work that remains to be done.

In February 2015, Reddit announced that it was banning nude or sexually explicit images posted without permission of the individuals depicted. Facebook and Twitter soon followed suit. The efforts of Reddit and Twitter are particularly notable for their characterization of their new policies as safeguarding user privacy. Twitter's policy now includes intimate photos and videos on the list of private information that should not be published without consent, as does Periscope, the popular new live streaming application purchased by Twitter in March 2015. In what is probably the most influential move by the tech industry to date, Google announced on June 18, 2015 that it would begin treating sexually explicit images the same way it treats other sensitive personal information -- that is, removing them from search results if they are published without consent.

Legislative reform has been dramatic as well. Before 2013, only three states in the U.S. criminalized the unauthorized distribution of private sexual images. As of June 21, 2015, that number has increased to twenty-three, with at least seventeen more states in the process of drafting or passing legislation. That so many states are taking this issue seriously is tremendous progress. It is crucial, however, to ensure that the laws being passed truly protect victims and that they are clear, principled, and constitutionally sound.

Unfortunately, many of these state laws do not fulfill these criteria. A disappointing number of these laws treat nonconsensual pornography primarily as a form of harassment rather than as a privacy violation. These laws require that a perpetrator act with the "intent to harm or harass" the victim, with some even requiring that the perpetrator be a current or former intimate partner of the victim. To be sure, nonconsensual pornography often plays a role in domestic violence, but making intent to harm or harass an element of the crime does not serve the best interests of domestic violence victims. Having to prove intent to harm or harass beyond a reasonable doubt will not only be practically impossible for those victimized by strangers; it will often be very difficult in domestic violence cases as well, as perpetrators can claim a number of plausible alternative motives. Nonconsensual pornography is not always about revenge, but it is always about privacy. It is for good reason that privacy laws, from trespass laws to confidentiality requirements to prohibitions against voyeurism, do not require that perpetrators be motivated by intent to harm or harass the victim. The knowing violation of privacy is the substance of the harm.

The folly of requiring intent to harm or harass in nonconsensual pornography laws is made clear by considering how none of these (actual) cases would constitute a crime under such a definition:

- Anonymous posters distributing private, intimate photos stolen from more than a hundred celebrities, in the hopes of obtaining Bitcoin or elevating social status;
- A California Highway Patrol officer passing around intimate pictures obtained from a female arrestee's cellphone as part of a "game" among officers;
- Penn State fraternity brothers uploading photos of unconscious, naked women to a members-only Facebook page for entertainment purposes;
- Revenge-porn site owners like Hunter Moore and Craig Brittain publishing thousands of private, sexually explicit private images for profit and entertainment.

Intent to harm requirements aren't just bad policy; they are also bad law. Though some claim that such requirements are necessary to ensure compliance with the Constitution, the exact opposite is true: arbitrary distinctions about motive create constitutional issues instead of resolving them. Prohibiting disclosures of sexually explicit images only when they are made in the hopes of causing distress while allowing disclosures made in the hopes of obtaining profit or providing entertainment renders a law vulnerable to objections of both under-inclusiveness and viewpoint discrimination under the First Amendment.

These and other problems with many of the state laws regulating nonconsensual pornography, combined with jurisdictional limitations poorly suited for this borderless crime, make the need for a federal criminal law clear. A federal criminal law is necessary not only to provide a single, clear articulation of the relevant elements of the crime, but also to signal society's acknowledgement and condemnation of this serious wrongdoing.

In April 2015, Senator Al Franken, who serves on the Senate Judiciary Committee's subcommittee on Privacy, Technology and the Law, called on the FBI to "provide information on any limitations in current law... that may have prevented the FBI from conducting investigations and making arrests in cases of nonconsensual disclosure of sexually explicit images." Representatives Jackie Speier (D-CA) and Gregory Meeks (D-NY) are addressing those limitations by leading Congressional efforts on a federal criminal provision protecting intimate privacy. For over a year, I have worked closely with their offices to draft the Intimate Privacy Protection Act, with input from the tech industry, civil liberties groups, constitutional scholars, victims, and advocacy groups. The bill is scheduled to be introduced in the near future.

Laws protecting privacy have a long and important history in this country. Privacy is essential to freedom of expression and speech, as well as being fundamental to a democratic society committed to equality and personal autonomy. This is as true for sexual privacy as it is for financial or medical privacy, and a federal bill recognizing this is long overdue.